Briefing Note on arrangement between eircom and the Irish Recorded Music

Association (IRMA) with regard to Copyright Infringement

March 2009
Background
Four major record companies, EMI, Sony, Universal and Warner initiated legal
proceedings against eircom seeking to compel eircom to deploy monitoring/filtering
technologies on its network to identify and prevent copyright infringement through
the use of P2P file sharing. The action was brought under the Irish Copyright
legislation.

The hearing was held in the Irish High Court in January 2009. After eight days at
trial, the legal proceedings were settled. The approach to be adopted as part of
the settlement will not involve eircom engaging in any form of monitoring
activity.

Current Position
Since the legal proceedings ended, both parties have been engaged in detailed
discussions regarding how the settlement will be implemented. These discussions
concern very complex legal and technical issues. The discussions have not yet been
concluded.

Key Points of the Draft Protocol

It is important to note that the agreement means
that:

• eircom will not monitor its customer's activities at any stage.

• eircom will not implement any form of monitoring equipment or software
on its network.
• eircom will not provide personal details or any information relating to
its
customers to any third party, including the record companies. No personal
data will be transferred from eircom to the record companies which would enable
any customer of eircom to be identified. eircom has agreed to keep confidential
and will not disclose any information concerning its customers to the record
companies and it will in particular observe in all respects the laws on data
protection.
1. Notification/Certification:
The agreement between the parties provide that the record companies will supply
eircom with the IP addresses and evidence of the infringement of those the record
companies detect illegally uploading or downloading copyright works on a peer to
peer (P2P) basis.
The draft protocol being negotiated by the parties sets forth the level of detail
required by eircom from the record companies in relation to the notification by
them of iinfringements by customers.
Under the draft protocol, the notification shall include the following information
(at a minimum):
details of copyright holder (name and address);
why the notification is being sent (i.e. setting out the
breach of
copyright);
the actual copyright work that has been infringed
(information on
copyright material, for example artist, song, title and album
title);
the IP address;
the time stamp of when the investigation was initiated;
the time stamp of when the investigation was completed,
the peer to peer application/software used by the customer;
and,
the digital fingerprint/hash for copyright material detected;
The last item, the digital fingerprint/hash of the copyright material detected,
allows eircom to verify that the copyright work identified by the record companies
is in fact owned by them.
In addition, the information which will be provided by the record companies will
be of the same type as that used in the three previous disclosure actions in the
Irish High Court involving the parties and eircom will not act upon a notification
from the record companies that does not contain the information set out above.
eircom has also requested that the record companies provide independent
certification that the notification has been lawfully obtained by and on behalf of
the record companies.
The record companies are also to provide reputable annual independent
certification that the necessary legal, I.T., entity level and regulatory controls
relating to the obtaining, generating and processing of data by Detecnet (or any
other supplier engaged by the record companies) have been complied with.
2. Graduated Response:
eircom has agreed that it will from now on implement a graduated process in which
it will;
1) Inform its broadband subscriber that the subscribers IP address has been
detected infringing copyright; and
2) On a second occasion of being detected infringing copyright, warn the
subscriber that unless the subscriber ceases to infringe copyright the subscriber
will be disconnected; and,
3) On a third occasion of being detected as infringing copyright, and having
reviewed the position, the subscriber will be served by eircom with a termination
notice and, subject to extenuating circumstances arising, will be disconnected
thereafter. eircom has not agreed to block any Internet sites from being accessed
by end-users.
As part of the settlement of the above proceedings, it was agreed that eircom
would not oppose an application by the Plaintiffs to seek to have eircom block
access to the Pirate Bay website. The Music Industry will still have to establish,
in the normal way that there is an appropriate basis for the relief which they
seek from the Court. eircom is not supporting or consenting to the application.
The settlement makes no provision for any site other than the Pirate Bay website.
At all stages in the graduated process, customers will have the right to complain
and make representations to eircom if they feel that they have been
inappropriately orincorrectly identified as infringing copyright. eircom will
deal with all representations formally made by customers. The existing broadband
support processes and platforms which eircom uses will also be used to log, track
and report on all customer interactions related to copyright infringement. eircom
will respond to complaints and representations made by its customers both
internally and with other parties.
eircom has also reserved the right to remove a customer from a particular level or
not to effect a disconnection where eircom has received representations or
complaints and believes that the infringement as alleged has not taken place or
where there are particular extenuating circumstances which would make the
disconnection of the customer unjustified.
eircom will engage with that person at all times to ensure that there is a full
understanding of the issues and that any accidental or unintentional infringement
can be identified and remedied.
Disconnection will follow only when eircom is totally satisfied that there is
clear evidence of sustained copyright infringement, that the alleged infringing
person has had sufficient opportunity to explain its circumstances and that all
possibilities that the person was a victim of accidental infringement have been
eliminated. eircom is satisfied that if all of these conditions are met, it is
entirely proportionate to disconnect the High Speed Internet Access Service. The
eircom supply contract with individual customers explicitly states that service
will be discontinued if an end-user is found to be infringing copyright.
Furthermore, under Irish Copyright Legislation, any operator who becomes aware of
illegal copyright activity on its network has obligations in effect to bring this
activity to an end. Disconnection only applies to the Internet Access Service
provided by the ISP. Other telecommunications services including VOIP, IPTV will
be fully available.

Conclusion
In conclusion, eircom would stress that the approach being discussed with the
Music Industry in Ireland protects the “mere conduit” status of telecommunications
operators. eircom has not agreed to take responsibility for the illegal actions of
end-users of the network and is not introducing any monitoring procedures of
customer
internet usage.